HomeMy WebLinkAboutCypress Valley LLC; 2000-06-16;_._ .“. --_
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AGREEMENT FOR REIMBURSEMENT OF
COSTS FOR CONSTRUCTION OF OVERSIZED SEWER LINES
AND PAYMENT OF OTHER COSTS FOR SOUTH AGUA HEDIONDA
INTERCEPTOR SEWER REACHES (SAHT2B AND SAHTZC)
IN CONJUNCTION WITH CALAVERA HILLS VILLAGES VILLAGES Q &T
CITY OF CARLSBAD TRACTS 83-19 AND 83-32
This Agreement For Reimbursement Of Costs For Construction Of Sewer Main
Improvements In Conjunction With Calavera Hills Villages Q & T dated as of
June 16 , 2000, (“Agreement”), is made at Carlsbad, California, between
CYPRESS VALLEY, LLC a Delaware limited liability Company (Cypress), and the CITY OF
CARLSBAD, (“City”) with reference to the following recitals:
RECITALS
A. Cypress is the record owner of certain real property located in the City of
Carlsbad, California, more particularly described on Exhibit “A” attached hereto and made a part
hereof (CALAVERA HILLS). The Calavera Hills consists of several villages, as designated on
Exhibit “A”. As used herein, the term “Village” shall refer, as indicated, to one or more of such
Villages so designated on Exhibit “A.”
B. All of the Villages of Calavera Hills, are herein referred to collectively as the
“Calavera Hills Project.” Cypress is the developer of the Calavera Hills Project.
C, The City Council of City approved the Final Maps and Subdivision Agreements
for Tracts 83-19 & 83-32 (Villages Q & T) on July 7, 1992.
D. Cypress has advanced on behalf of City the cost of right of way acquisition,
Regional Water Quality Control Board permits and constructing of oversized sewer facilities
consistent with the Sewer Master Plan, hereinafter collectively referred to as the ‘Sewer Work”.
E. City will utilize funds collected from Sewer Benefit Area “D” and “E” fees to
reimburse the costs advanced hereunder by Cypress.
F. City and Cypress recognize that the Sewer Work exceeds the infrastructure
otherwise required of Cypress as required by the Sewer Master Plan. Cypress agrees to
construct or cause the construction of the Sewer Work provided the City agrees to reimburse
Cypress as set forth in this Agreement.
G. City and Cypress desire to enter into a reimbursement agreement which covers
the Reimbursable Work contemplated by the construction of the Sewer Work.
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H. The Sewer Work shall include the following improvements, as further set forth on
Exhibit “B”.
(1) Oversizina of Sewer Mains.
(2) Application and monitorinq of Dewaterinq Permit.
(3) Purchase of Easements for Citv.
(4) Definition of “Sewer Work”. The various items of construction, described in
subsections (I), (2) and (3) above are hereinafter collectively referred to as the “Sewer Work”.
(5) Estimated Cost of Sewer Work. City shall reimburse Cypress in the manner
described in Section 4 below for the total costs advanced by Cypress for the Sewer Work. The
Total Cost and the Reimbursable Cost for each of the items of Sewer Work is currently
estimated to be as follows:
Iterh Description Total Cost Reimbursable
cost
1 Oversizing of Sewer Mains $25802.00 $25802.00
2 Dewatering Permit $16552.00 $16,522.00
3 Right-of-Way Acquisition $15,000.00 $15,000.00
Total Cost of Work $57.354.00 $57,354.00
I. On April 4, 2000, the City Council of the City of Carlsbad approved, but did not
execute, an agreement with Cypress setting forth terms and conditions for reimbursement.
J. City and Cypress desire to rescind the agreement approved on April 4, 2000, and
replace it, in its entirety, with this Agreement.
NOW THEREFORE, the good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. April 4. 2000 Aareement. By executing this Agreement, the parties hereby agree
to immediately rescind the agreement approved by the Carlsbad City Council on April 4, 2000,
and replace it, in its entirety, with this Agreement.
2. Recitals. The Recitals are true and correct.
3. SATISFACTION OF OBLIGATION.
Cypress’ agreement to perform the Sewer Work, as set forth herein, and the
actual construction thereof, shall fully satisfy and constitute full compliance with all requirements
regarding the Calavera Hills Project with respect to the Sewer Work.
4. CYPRESS OBLIGATIONS.
(a) In consideration of City’s reimbursement and other undertakings as set
forth herein, Cypress agrees to construct and install the Sewer Work.
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W Cypress shall complete all work no later than three (3) years from the
effective date of the Agreement. Sewer Work completed before the effective date of this
Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement.
6) Cypress shall use the complete set of City approved plans, specifications,
and other design documentation for the Sewer Work.
63 By entering into this Agreement, Cypress waives any and all potential
constitutional (NollanlDolan) objections relating to the Sewer Work.
5. CITY OBLIGATIONS.
(a) City shall reimburse Cypress an amount (the “Reimbursement Amount”) equal
to (i) the cost of the Sewer Work (the “Actual Total Cost of all items of Sewer Work identified in
Recital “H” of this Agreement”), plus, (ii) an overhead allocation of four percent (4%) of the
Actual Total Cost ($ 2,294.OO) in lieu of other reimbursement for Cypress’ cost incurred for
salary and benefits for staff of Cypress’ home offices, supervision above the level of on-site
superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds,
insurance and bond premiums, expenses for meetings with and presentations to governmental
agencies which issue permits or otherwise regulate project approval, (collectively, the
“Overhead Costs”), plus, (iii) an additional two and one-half percent (2.5%) of the Actual Total
Cost ($1,434) for construction administration, engineering design, construction fees and permit
fees advanced by Cypress, soils engineering, pipeline surveying, staking, and other incidental
costs. The Actual Total Cost shall include all costs associated with the installation of the Sewer
Work.
Total 1
Actual Total 4% Overhead 2.5% Additlonal Reimbursable
cost Allocation cost cost
$57,354.00 $2,294.00 $1,434 $61,082.00
W City agrees to reimburse Cypress for the Sewer Work, in the method as
described in Sections 5 and 6 below.
5. ACCOUNTING OF COSTS.
(4 When an item of the Sewer Work has been completed, as described in
Section 5(e) below, Cypress shall present City with a complete and detailed accounting of the
costs and expenses advanced by Cypress in connection with the Sewer Work. Upon its receipt
of a written request from City, Cypress will allow an audit of such costs and expenses to be
prepared at Cypress’ expense by certified public accountants specified by City.
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(b) Cypress has submitted costs to the City and the City agrees that the
request is fair and reasonable.
6) During the performance of any Reimbursable Sewer Work, Cypress shall
retain detailed payment records for all Reimbursable Sewer Work items, for use by City in
auditing any subsequent requests by Cypress. Cypress’ requests for reimbursement (each a
“Reimbursement Request”) shall include contracts, invoices, canceled checks (front and back),
lien releases and other documentation reasonably required by City to evidence the completion
and payment for each item of Reimbursable Work. Reimbursable Requests may be submitted
in stages upon completion of any item of the Sewer Work in conformance with Section 5 (e).
(d) Cypress shall send one copy of each contractor invoice to the “Public
Works Director” of the City together with an invoice for all other components of the
Reimbursement Amount. The Public Works Director shall consider and approve the request
pursuant to this Agreement. If the Public Works Director objects to any items comprising the
Reimbursement Amount, the Public Works Director shall notify Cypress within ten (10) days of
receipt of all invoices forwarded by Cypress. Failure to notify Cypress shall be deemed the
Public Works Director approval of such invoices. In the event the Public Works Director does
object, Cypress and the Public Works Director shall meet to discuss the disputed amount (at
which time Cypress shall make available all of the Work Documentation) and attempt to resolve
the matter through good-faith negotiation.
@I Prior to the submission to the Public Works Director of the final invoices,
Cypress shall obtain necessary or appropriate lien releases from the Contractor, and shall
obtain from the City, and any and all appropriate governmental agencies, all approvals,
certificates, and other documents necessary to indicate the completion of the Sewer Work and
the ability to put the Sewer Work into use. The date Cypress receives all such lien releases,
approvals, and certificates shall be deemed the date of completion of the Sewer Work (the
“Completion Date”). Cypress may submit its accounting and requests for payment (Section 5) at
any time. Any delay by Cypress in such submittals shall not prejudice Cypress’ rights, but shall
delay day-for-day the time in which the City must take any responsive action.
(9 Nature of Reimbursable Costs. Notwithstanding the foregoing, if Cypress
disputes the Public Works Director determination of reimbursable costs or believes that sum
established by the Public Works Director is not consistent with the specific provisions of the
Agreement, then Cypress may elect to (i) appeal the Public Works Director’s decision to the City
Council (and thereafter, at Cypress’ option, a Court of proper jurisdiction) for final determination,
or (ii) submit the dispute for the review and recommendation of a neutral and independent civil
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engineer qualified in engineering, design and construction and mutually approved by City and
Cypress; provided, however, said engineer’s recommendation shall be non-binding and shall not
preclude Cypress from thereafter appealing the Public Works Director’s decision as described in
item ( i ) above.
6. CITY’S PAYMENT OF REIMBURSEABLE EXPENSES.
City shall pay Cypress the Reimbursement Amount for its costs (as approved
pursuant to Section 5, above) within 30 days after the City’s acceptance of the Sewer Work, or
execution of this Agreement which ever is later.
7. MISCELLANEOUS.
(a) Disputes: Claims: If a dispute should arise regarding the performance or
interpretation of this Agreement, the following procedure shall be used to resolve and question
of fact or interpretation not formally resolved by the parties. Such questions, if they become
identified as a part of a dispute among persons operating under the provisions of this
Agreement, shall be reduced to writing by the principal Cypress or the City’s City Manager (City
Manager). A copy of such documented dispute shall be forwarded to both parties involved along
with recommended methods of resolution, which would be of benefit to both parties. The City
Manager, or principal, upon receipt, shall reply to the letter, including a recommended method of
resolution, within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved
party, a letter outlining the dispute shall be fowarded to the City Council for their resolution
through the office of the City Manager. The City Council may, but is not obligated to resolve the
dispute. If the City Council considers the dispute, and directs a solution, the action of the City
Council shall be binding upon the parties involved, although nothing in this procedure shall
prohibit the parties seeking remedies available to them at law.
(b) Jurisdiction. Cypress agrees and hereby stipulates that the proper
venue and jurisdiction for resolution of any disputes between the parties arising out of this
Agreement is San Diego County, California.
w Obliaations and Benefits Not Runninq With Land: No Third Party
Beneficiaries. This Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. However, it shall not run with the land or be recorded, and
all payments due from the City shall be made to Cypress or such assignee as Cypress
designates in writing. This Agreement shall not be deemed to confer any rights upon any
individual or entity which is not a party hereto; the parties hereto expressly disclaim any such
third-party benefit.
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(d) Notice. Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and shall be deemed to have duly
delivered upon personal delivery, or by Federal Express (or similar reputable express delivery
service), or by facsimile transmission with back-up copy mailed the same day, or as of the
second business day after mailing by United States certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Cypress:
Cypress Valley, LLC
Attention: Mr. James Ondler
2727 Hoover Avenue
National City, California 91950
Telephone: (619) 336-3735
Facsimile: (619) 336-3112
If to City:
City of Carlsbad
Attention: Mr. Lloyd Hubbs,
Public Works Director
1635 Faraday Avenue
Carlsbad, California 92008
Telephone: (760) 602-2730
Facsimile: (760) 602-8562
or to such other address or to such other person as any party shall designate to the others for
such purpose in the manner set forth above.
@I Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
(9 Governino Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California.
(9) Complete Aqreement. This Agreement contains the entire agreement
between the parties with respect to the matters set forth herein, and supersedes all prior or
contemporaneous agreements (whether oral or written) between the parties with respect to the
matters set forth herein.
(h) Amendment. This Agreement may be amended by a written instrument
executed by City and Cypress (including for this purpose any successors of Cypress, to the
extent of their ownership of real property with Calavera Hills Project), except that no amendment
regarding the provisions for reimbursement to Cypress shall be valid unless executed by
Cypress Valley, LLC.
(0 Term. This Agreement shall be effective as of the date hereof, and shall
terminate on the date the City fully reimburses Cypress the Reimbursement Amount.
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(i) No Third Partv Beneficiaries. This Agreement shall not be deemed to
confer any rights upon any individual or entity which is not a party hereto, and the parties hereto
expressly disclaim any such third-party benefit.
(1) Payments to Cvpress. Any payments to Cypress by City hereunder shall
be made payable to Cypress Valley, LLC and shall be forwarded to the following address, or to
such other address as Cypress specifies in writing to the City Manager of City:
CIC Cypress Valley, LLC
Attention: Mr. James Ondler
2727 Hoover Avenue
National City, California 91950
(m) Citv Authoritv: City warrants, represents and agrees that it has the legal
authority to collect the funds that it will use to reimburse Cypress. City further warrants,
represents and agrees that it has the legal authority to pay these funds to Cypress. These
warranties, representations and agreements are a material inducement to Cypress to enter into
this Agreement. In the event City lacks legal authority to collect the fees necessary to pay
Cypress, City shall pay the amount due Cypress out of other funds at the same rate as if it had
collected the fees.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
Executed by DEVELOPER this f2kk day of n P\I 2000.
Executed by CITY this 16th day of June ,200o.
DEVELOPER: CITY:
CYPRESS VALLEY, LLC, a Delaware
limited liability company
By: McMillin Companies, LLC, a
Delaware limited liability company
Its: Manager
By:
(sign here)
DOA M rlLI*LL ) v- P
(print name/title)
/73tLwwdt-~*- By: ’ .
(sign here)
A. f$f/& %Ji&br K f?
(print nartTe/title)
CITY OF CARLSBAD, a Municipal
Corporation of the State of California
Date: June 16, 2000
ATTEST:
\ / \ . WOOD, City Clerk
(Proper notarial acknowledgment of execution of DEVELOPER must be attached.)
(Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer
must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary
or assistant secretary under corporate seal empowering that officer(s) signing to bind the corporation.)
(If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute the instrument.)
APPROVED AS TO FORM:
:g1‘1;3-
bC)JV)
CMWD
8 5/8/2000
STATE OF CALIFORNIA ss.
COUNTY OF SAN DIEGO >
On 5112/00 , before me, Dawn B. Mendoza. Notarv Public personally
appeared Don Mitchell and Thomas A. Fuller , personally known to me to be the persons
whose names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures on the instrument
the persons or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signature
This area for ofkial notarial seal
COMM.# 1125049 z NOTARY WBLICCALIFWINIA
SAN DIEGO. CA
Title of Document Agree for Reimb of Costs for Const. - Calavera South Aqua Hedionda
Date of Document No. of Pages
Other signatures not acknowledged
Notary Form-2 McMillin Companies